THRYV, INC.

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1269

Cases 20-CA-250250 and 20-CA-251105

December 13, 2022

DECISION AND ORDER

BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, RING, WILCOX, AND PROUTY

*1 On April 23, 2021, Administrative Law Judge John T. Giannopoulos issued the attached decision. The Charging Party and Acting General Counsel each filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The Respondent filed cross-exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions¹ only to the extent consistent with this Decision and Order.²

The issue presented before us on the merits is whether the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). We agree with the judge's determination that the Respondent violated the Act by failing and refusing to respond to information requests advanced by the Charging Party, International Brotherhood of Electrical Workers, Local 1269 (IBEW or the Union). Contrary to the judge, however, we find that the Respondent also violated Section 8(a)(5) and (1) of the Act by unilaterally laying off six employees in violation of the statutory duty to bargain.

We next examine the proper scope of the Board's make-whole relief. Where, as here, our standard remedy would include an order for make-whole relief, we find it necessary to ensure that affected employees are made fully whole for the costs they incur as a result of the respondent's unlawful actions. Accordingly, to best effectuate the purposes of the Act, our make whole-whole remedy shall expressly order respondents to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent's unfair labor practice.

Background

The Respondent, Thryv, Inc., operates a marketing agency engaged in the business of selling Yellow Pages advertising, as well its eponymous product ““Thryv,” an application for small businesses. While all parties agree that Yellow Pages advertising has increasingly declined since the advent of the Internet, the Respondent still generates annual revenues in excess of $1.1 billion, with print and electronic advertising accounting for 88 percent of that amount.

The Union represents a unit of employees that includes the Respondent's outside sales force, which in turn consists of three subsets of “premise” representatives, so named because they go to customer premises to solicit advertising sales. These premise representatives consist of Senior Business Advisors (SBAs), who handle high-value clients, Business Advisors (BAs), who handle medium-value clients, and New Business Advisors (NBAs),³ who solicit new clients for the Respondent. Small accounts are handled by the Respondent's “inside” sales force of non-unit advertising agents. The markets assigned to the Senior Business Advisors, Business Advisors, and New Business Advisors are called “channels,” with a Senior Business Advisor channel, a Business Advisor channel, and a New Business Advisor channel, respectively.

*2 Around mid-July of 2019,⁴ the Respondent began implementing its proposal to lay off all of its New Business Advisors in the Northern California Region. On July 18, Assistant Vice President of Human Resources Lisa O'Toole, Chief Human Resources Officer Deb Ryan, and Assistant Vice President of Labor Relations Beth Dickson discussed via email whether the Respondent could “keep the good ones,” with Dickson cautioning that the Respondent needed to transfer these “good” New Business Advisors into roles as Business Advisors before the layoff, so that the Respondent could “call it a channel elimination.” Around this time, the Respondent transferred two former managerial employees, Luis Pantoja and Marlon McConner, from their positions as New Business Advisors into new positions as Business Advisors.

Shortly thereafter, on August 21, Dickson emailed the Union stating that the Respondent “will administer a force adjustment” and lay off the six New Business Advisors in the Northern California Region effective September 20. The email stated, “[i]f the Union desires to exercise its right to meet and discuss the Company's plan within the 30-day period, please contact [Labor Relations Manager] Ralph Vitales to arrange such discussions.”

The Union contacted Vitales the following day, and after proposing various dates, the parties agreed to meet and bargain on September 11 and 12. However, before the scheduled bargaining sessions, the Respondent moved forward with implementing its plan to lay off the six affected employees. On September 5, the Respondent sent union officials notice that the following day it would inform employees of the layoff. Vitales stated in this email that the Respondent would still be available on September 11 and 12 “to bargain the effects of this force reduction” (emphasis added). On September 6, the Respondent held a virtual meeting with some of the New Business Advisors. During the meeting, Regional Vice President Terry Henshaw told the assembled employees that the Respondent organized the meeting to “officially notify you that we are eliminating our Northern California DSE [New Business Advisor] Channel,” that these “positions will be eliminated effective September 20, 2019,” and that the Respondent had already sent severance packages to all six affected employees via overnight mail.

The Union and Respondent first met to discuss the layoff of the New Business Advisors on September 11. During the bargaining, Union Local President Stefen Guthrie asked Vitales for a proposal regarding the layoffs. Vitales responded that Article 30 of the Respondent's Last, Best, and Final Offer (LBFO) served as the Respondent's proposal.⁵ Guthrie asked about available jobs with the Respondent into which the affected employees could transition. Guthrie also asked the Respondent to provide an “audit trail” for all the accounts assigned to New Business Advisors, an industry term-of-art understood by the parties to encompass “assignments, customer names, locations, addresses, records, advertising revenue, commissions, items of advertising, and a listing of the sales representative of record.” Finally, Guthrie requested the work market location for each of the six employees that the Respondent was proposing to lay off.

*3 Guthrie then proposed that the Respondent absorb all the New Business Advisors into the Business Advisor title, as envisioned by the language of the LBFO.⁶ Vitales stated that there was insufficient revenue to transfer all the New Business Advisors into Business Advisor positions, and Guthrie proposed that the layoffs be suspended so that the parties could discuss the issue.⁷ Vitales responded that the layoffs would not be rescinded. Guthrie asked how the Union was expected to bargain, and Vitales asked what the Union needed, to which Guthrie responded: “client base.” In a subsequent September 11 email, Guthrie told the Respondent it had “an obligation to meet with the Union specifically but not limited to how and when we would absorb New Business Advisor Premise into [the Business Advisor position]” and asked the Respondent to “[e]ffective immediately rescind all Force Adjustment Notification(s) to Bargaining unit employees . . .”

The parties subsequently met on September 12 to bargain the layoff decision. The Respondent's bargaining notes for this session are titled “Bargaining Force Adjustment of DSEs [NBAs] in N.CA . . .” During this meeting, Guthrie asked for the parties to figure out how to integrate the New Business Advisors into another bargaining unit position, to which Beth Dickson replied: “The channel is not performing. Their numbers are too low.” Guthrie noted that “[t]he company had information and we didn't have a meeting to see how we could absorb these people into the BA role. We have not had the benefit of this information.”

On September 16, Guthrie sent an email stating that under the LBFO the New Business Advisors should be absorbed into the bargaining unit as Business Advisors. Guthrie reiterated his request for information about the work market locations of the six laid-off employees, citing that Article 30 of the LBFO required the Respondent to provide this information. On September 20, the Respondent implemented its decision and formally laid off the six New Business Advisors.

The parties met again on October 3, after the implementation of the layoffs. During the meeting, Guthrie explained that the Union's request for information regarding the employees' work locations was important because although all of the Premise Representatives worked remotely, their base pay was determined by the market to which they were assigned. This information was necessary for the Union “to evaluate what market” was assigned to the New Business Advisors and other employees in that location, and “where it went” after their layoff. Guthrie again asked for audit trails of the accounts so that the parties could determine the share of the market that might be available to the laid-off employees.

*4 On October 16, the parties held a grievance meeting in which the Union submitted a request for information regarding accounts that underwent ““unification.” When two previous business entities had merged to form Thryv, Inc., some accounts were assigned to a representative from each of the former parent entities, and the “unification” process ensured that the account was reassigned to only one representative. The Union sought a list of all these ““twin accounts,” as well as the names and addresses of the businesses in these accounts, to ensure that bargaining-unit work was not being assigned to non-bargaining-unit employees in violation of the LBFO.

On October 17, Union Business Representative Mike Waltz sent the Respondent an information request by email. This request sought account and market information for New Business Advisors, Business Advisors and Senior Business Advisors in the Northern California and Nevada market over a period of the last 12 months. The request included accounts assigned to these Premise Representatives as well as accounts that had been moved out of the market or reassigned.

On October 30, the Union reiterated its request for the names and addresses of the “twin accounts,” noting that 83 of the accounts had been assigned to the bargaining unit, but seven had been reassigned to non-bargaining unit employees. The Respondent refused to disclose the names and addresses of the customers associated with these accounts unless the Union signed a non-disclosure agreement, a condition precedent that it had never imposed upon previous information requests.

The parties' final bargaining session occurred on October 31, with Guthrie beginning the meeting by noting the numerous outstanding requests for information and saying, “I don't know how to bargain if we have RFI [requests for information] and we need the information to bargain.” Guthrie remarked that plenty of Premise Representatives were leaving and that there was “ample market to move at least some of [the laid-off employees] into,” noting that the Union simply needed information from the outstanding requests to determine this. To this extent, Guthrie reiterated the Union's request for information regarding the specific market assignments given to former Luis Pantoja and Marlon McConner, two former managers of the Respondent who had been moved from New Business Advisor positions to Business Advisor positions shortly before the layoffs.

To date, the Union has not received the aforementioned information it requested.

1. respondent's unfair labor practices

1. Information Requests

The judge found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to respond to the requests for information made by the Union on September 11 and 16, and on October 3, 17, and 31. We agree. The judge carefully explained how each item of information requested by the Union was presumptively relevant, as it concerned the wages or working conditions of unit employees, or how the Union demonstrated the relevance of such information as necessary to its role of bargaining representative. The judge correctly rejected the Respondent's claims that the provision of the requested information would be burdensome, voluminous, costly, or confidential. Accordingly, we adopt the judge's determinations that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with the requested information.

1. Unilateral Layoffs

*5 The judge found that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally laying off the six New Business Advisors. Although the judge determined that the Respondent had a duty to bargain over the economic layoff of these employees, the judge found that the layoff was lawful, as it was imposed subsequent to the parties having reached impasse. Although the Respondent unilaterally implemented its layoff decision just nine days after the first bargaining session, the judge found that “because the Union failed to present any reasoned proposals before September 20, the evidence supports a finding that impasse had quickly occurred, and/or by its conduct the Union waived its opportunity to bargain.” The judge found that the Respondent's decision was not a fait accompli, and that even if it was, “the Respondent cured any such conduct by bargaining with the Union in good faith about the layoff and specifically asking the Union for its counterproposals.”

We reverse and find that the Respondent's decision to lay off the six New Business Advisors was presented as a fait accompli, and that any subsequent bargaining did not “cure” this conduct because the Respondent's failure to provide the requested information prevented the Union from making reasoned counterproposals. Additionally, we find that the Respondent violated its duty to refrain from making unilateral changes during the pendency of bargaining a successor agreement. We therefore find that the Respondent's unilateral layoff of these six employees violated Section 8(a)(5) and (1) of the Act.

“It is . . . well established that a union cannot be held to have waived bargaining over a change that is presented as a fait accompli.” Intersystems Design & Technology Corp., 278 NLRB 759, 759 (1986) (quoting Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1397 (5th Cir. 1983)). Further, “no impasse is possible where an employer presents the union with a ‘fait accompli’ as to a matter over which bargaining to impasse is required.” Castle Hill Health Care Center, 355 NLRB 1156, 1189 (2010). Here, it is undisputed that the Respondent was obligated to bargain over the decision to lay off the New Business Advisors. See Lapeer Foundry & Machine, Inc., 289 NLRB 952, 954 (1988) (“[W]e conclude that the decision to lay off employees for economic reasons is a mandatory subject of bargaining.”). That decision was presented to the union as a fait accompli, an accomplished fact, as the Respondent began to implement the decision well before notifying the Union of the layoff or attending the first bargaining session.

First, the Respondent began taking steps to implement its layoff decision as early as July 2019, when the Respondent transferred former managers Luis Pantoja and Marlon McConner from their positions as New Business Advisors into new positions as Business Advisors in order to “keep the good ones” after the layoff. This was done weeks before the Respondent first informed the Union of the layoff decision on August 21. See FirstEnergy Generation, LLC, 366 NLRB No. 87, slip op. at 16-17 (2018) (finding a fait accompli where Respondent already began implementing subcontracting decision before providing notice to the Union), enf. denied on other grounds 929 F.3d 321 (6th Cir. 2019).

*6 Second, the Respondent informed employees on September 6, 5 days before its first bargaining session with the Union, that the purpose of its meeting was to “officially notify” the employees that the Respondent “will administer a force adjustment in the Sales Organization in the New Business Advisor title . . .” and that “these positions will be eliminated.” The Respondent not only “announced the layoff to employees and told them that their severance packages were forthcoming,” as stated by the judge, but also mailed the severance packages to the laid-off employees via overnight delivery on September 6, a full 5 days before the first bargaining session even began. We find that the Respondent's actions established that the layoff decision was presented as a fait accompli. See, e.g., Pontiac Osteopathic Hospital, 336 NLRB 1021, 1024 (2001) (union was presented with a fait accompli where the employer posted its unilaterally-imposed policy on its bulletin boards, “an event that ordinarily occurred only when decisions were final,” and where this notice stated that the changes “will be implemented,” with “such language again showing the Respondent's intent to effect this change without bargaining.”).

We also reverse the judge's finding that even if the Respondent presented the decision as a fait accompli, the Respondent “cured” its unlawful conduct through subsequently bargaining with the Union and seeking counterproposals. The Respondent is incorrect in asserting that the Union did not make any counterproposals to the announced layoff decision. The judge himself notes that the Union did, in fact, present proposals, repeatedly asserting to the Respondent that the Union sought to work together with the Respondent to incorporate the New Business Advisors into positions as Business Advisors, or to delay the layoffs until agreement could be reached.

Further, the Board has held that “a party's failure to provide requested information that is necessary for the other party to create counterproposals, and, as a result, engage in meaningful bargaining, will preclude a lawful impasse.” E.I. du Pont & Co., 346 NLRB 553, 558 (2006), enfd. 489 F.3d 1310 (D.C. Cir. 2007). Here, we find that Respondent's failure and refusal to respond to the Union's requests for relevant and necessary information precluded the Union from formulating substantive counterproposals.

The judge found that as of the September 20 effective date of the layoff, the only extant requests were the request for an audit trail of all New Business Advisor accounts and the request for the market location of these employees. We find, contrary to the judge, that the request for an audit trail of the accounts was made for the purpose of bargaining the layoff decision, and not only to ensure that the employees could be made whole should their positions be restored through the grievance process. As the judge notes in his analysis on the relevance of the request for an audit trail, “the evidence clearly establishes that the Union believed the terminations of the various NBAs, and the impending layoffs, violated Respondent's contractual obligation and/or the Final Offer, and the parties were engaged in wide ranging discussions about the matter, with the Union wanting the NBAs to be reinstated or absorbed into the BA title.” This was demonstrated when on September 11, after being asked what the Union needed to formulate counterproposals, Guthrie replied: “client base,” echoing the sentiment that the Union was prevented from making a proposal without information regarding which clients could be assigned to the New Business Advisors. Further, when discussing the feasibility of transferring the laid-off employees into new roles, the Union made clear during bargaining on September 12 that “[t]he company had information and we didn't have a meeting to see how we could absorb these people into the BA role. We have not had the benefit of this information.” Thus, it is clear from the record evidence and from the judge's findings that the Union sought information regarding the accounts assigned to New Business Advisors in order to make substantive bargaining proposals about the layoff decision. Without this information, the Union could not determine what accounts were available to create a “bag” or market of accounts to give to the unilaterally laid-off employees in new or restored positions.

*7 We further find that the Union was prevented from formulating counterproposals due to the Respondent's failure and refusal to provide information regarding the market location of the laid-off employees. As held above, we agree with the judge that current, up-to-date information on the market location of the affected employees was necessary and relevant to the Union's status as collective-bargaining representative, and that the Respondent's failure and refusal to respond to the information request violated Section 8(a)(5) and (1) of the Act. We reverse, however, the judge's finding that this information was not relevant to the Union's formulation of counterproposals. Current market location was used to determine the base pay of the New Business Advisors, as well as what accounts might be available to them in that market were they to be transferred to Business Advisor positions. As the judge noted in his summary of Guthrie's testimony, “the Union needed ‘the specifics,’ including the area location along with how many employees were segmented into those particular locations because the Union ‘needed the ability to evaluate what market’ the NBAs had, and ‘where it went.”’ Without these ““specifics,” we find the Union could not formulate specific and substantive counterproposals to the Respondent's layoff decision.

In these circumstances, we find that the Respondent's failure to respond to these information requests effectively prevented the Union from formulating detailed or substantive proposals, thus precluding a declaration of impasse. See CP Anchorage Hotel 2, LLC d/b/a Hilton Anchorage, 370 NLRB No. 83, slip op. at 3 fn. 11, 4 (2021) (finding respondent violated Sec. 8(a)(5) and (1) by declaring impasse and unilaterally implementing proposal, even where union had not made a counterproposal, as “the Respondent's failure to timely provide the information precluded a valid impasse.”), enfd. mem. sub nom. UNITE HERE! Local 878 v. NLRB, 2022 WL 3010171 (9th Cir. 2022); Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 368 NLRB No. 119, slip op. at 21 (2019) (“It is well-settled that a finding of valid impasse is precluded where the employer has failed to supply requested information relevant to the core issues separating the parties.”) (internal quotations omitted), enfd. 845 F. Appx. 181 (3d Cir. 2021); accord Hendrickson Trucking Co., 365 NLRB No. 139, slip op. at 2, 2 fn. 6 (2017), enfd. 770 Fed.Appx. 1, 5 (D.C. Cir. 2019) (“the Board's holding that Hendrickson Trucking could not declare an impasse because it had failed to provide the Union the financial information it needed to evaluate the Company's representations was grounded in settled law.”). Accordingly, we reverse the judge and find that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors without first bargaining with the Union to impasse, as impasse was precluded by the Respondent's failure and refusal to provide requested information relevant to the layoff decision.

*8 In addition to our aforementioned finding, we also find that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors whilst the Respondent was under a duty to refrain from implementing unilateral changes during the pendency of bargaining a successor collective-bargaining agreement. As we held in Bottom Line Enterprises, “when, as here, the parties are engaged in negotiations, an employer's obligation to refrain from unilateral changes extends beyond the mere duty to give notice and an opportunity to bargain; it encompasses a duty to refrain from implementation at all, unless and until an overall impasse has been reached on bargaining for the agreement as a whole.” 302 NLRB 373, 374 (1991), enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). Here, the judge found the parties were operating under the Respondent's 2018 Last, Best, and Final Offer, but were in the process of negotiating a new collective-bargaining agreement when the Respondent implemented the unilateral layoffs on September 20. The parties subsequently reached agreement on November 14. Thus, pursuant to Bottom Line Enterprises, the Respondent violated Section 8(a)(5) and (1) by implementing unilateral layoffs while the parties were negotiating over the successor agreement, as there is no evidence that overall impasse had been reached on the agreement as a whole. 302 NLRB at 374; accord Stephens Media Group--Watertown, LLC, 371 NLRB No. 11 (2021); Oak Hill, 360 NLRB 359, 403 (2014); RBE Electronics, 320 NLRB 80, 81 (1995).

Further, there is no evidence that either of the two exceptions to the standard established in Bottom Line Enterprises apply here. See Pleasantview Nursing Home, 335 NLRB 961, 962 (2001) (“In Bottom Line, the Board recognized only two exceptions to that general rule: when a union engages in bargaining delay tactics and when economic exigencies compel prompt action.”) (internal quotations omitted), enfd. in relevant part 351 F.3d 747, 755-756 (6th Cir. 2003). There is no cognizable claim that the Union “in response to an employer's diligent and earnest efforts to engage in bargaining, insist[ed] on continually avoiding or delaying bargaining.” Bottom Line, supra, 302 NLRB 373 at 374. The Union attended the scheduled bargaining sessions, and the parties reached prompt agreement between September and November of 2019. Cf. Oak Hill, supra, 360 NLRB at 403-404 (Bottom Line exception not met even where union stated that there would be no further meetings or additional negotiations until it received a response to its information request).

*9 Next, there is also no legitimate argument that economic exigencies compelled the Respondent to lay off the six New Business Advisors on September 20. Although the Respondent presented evidence that the New Business Advisor positions were not profitable, we have long held that the failure to turn a profit does not constitute a “compelling economic consideration” that would excuse an employer's unilateral layoff. As we explained in Hankins Lumber Co., “[m]ost layoffs are taken as a of result economic considerations. However, business necessity is not the equivalent of compelling considerations which excuse bargaining. Were that the case, a respondent faced with a gloomy economic outlook could take any unilateral action it wished or violate any of the terms of a contract which it had signed simply because it was being squeezed financially.” 316 NLRB 837, 838 (1995).

Accordingly, we find that during the time of the September 20 unilateral layoffs, the Respondent and Union were engaged in negotiations over the terms of a successor bargaining agreement, and that the Respondent did not meet any of the exceptions which would privilege it to act unilaterally without bargaining to impasse over the agreement as a whole. Thus, in addition to the fait accompli analysis described above, we find that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors during the pendency of bargaining without first bargaining the successor agreement to impasse, pursuant to Bottom Line Enterprises.

1. remedial issues

Having found that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off six New Business Advisors, we next turn to the proper remedy.⁸ We find, for the reasons discussed at length below, that it is necessary for the Board to revisit and clarify our existing practice of ordering relief that ensures affected employees are made whole for the consequences of a respondent's unlawful conduct. We conclude that in all cases in which our standard remedy would include an order for make-whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent's unfair labor practice.⁹ As we explain below, any relief must be specifically calculated and requires the General Counsel to present evidence in compliance demonstrating the amount of pecuniary harm, the direct or foreseeable nature of that harm, and why that harm is due to the respondent's unfair labor practice. The respondent, in turn, will have the opportunity to present evidence challenging the amount of money claimed, argue that the harm was not direct or foreseeable, or that it would have occurred regardless of the unfair labor practice.

*10 We find that standardizing this remedy in all cases is necessary to “satisfy the Board's statutory obligation to provide meaningful, make-whole relief for losses incurred . . . as a result of a respondent's unlawful conduct.” King Soopers, Inc., 364 NLRB 1153, 1155 (2016), enfd. in relevant part 859 F.3d 23, 26 (D.C. Cir. 2017).

1. The Board's Statutory Authority

Pursuant to Section 10(c) of the Act, where the Board concludes that a party has engaged in an unfair labor practice, it “shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.” 29 U.S.C. § 160(c). The Supreme Court has held that our authority to fashion such a remedy “is a broad discretionary one.” NLRB v. J. H. Rutter-Rex Manufacturing, 396 U.S. 258, 262-63 (1969) (quoting Fiberboard Paper Products. V. NLRB, 379 U.S. 203, 216 (1964) (“The Board's [remedial] power is a broad discretionary one, subject to limited judicial review.”)); see also Fallbrook Hospital Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir. 2015) (Board acts at the “zenith of its discretion” when fashioning remedies) (internal quotation marks omitted). To give effect to this broad grant of discretion, the Board's remedial authority “will not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Fibreboard Paper Products Corp. 379 U.S. at 203 (quoting Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 539 (1943) (internal quotations omitted)).

Upon careful consideration of our remedial authority and our history of addressing the effects of unfair labor practices, we find that standardizing our make-whole relief to expressly include the direct or foreseeable pecuniary harms suffered by affected employees is necessary to more fully effectuate the make-whole purposes of the Act.¹⁰ “The underlying policy of Section 10(c) . . . is ‘a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.” Trustees of Boston University, 224 NLRB 1385, 1385 (1976), enfd. 548 F.2d 391 (1st Cir. 1977) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)); see also Camelot Terrace Inc. v. NLRB, 824 F.3d 1085, 1092 (D.C. Cir. 2016) (“‘The task of the Board in applying § 10(c) is to take measures designed to recreate the conditions and relations that would have been had there been no unfair labor practice.”’) (quoting Franks v. Bowman Transportation Co., 424 US. 747, 769 (1976)); NLRB v. Strong, 393 U.S. 357, 359 (1969) (“‘[M]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.”’) (quoting Phelps Dodge Corp., 313 U.S. at 197); J.H. Rutter-Rex Manufacturing, 396 U.S. at 263 (purpose of Board orders is “restoring the economic status quo that would have obtained but for the company's wrongful [unfair labor practices].); Radio Officers' Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 54-55 (1954) (“It is clear that petitioner committed an unfair labor practice and the policy of the Act is to make whole employees thus discriminated against.”). To the extent that our prior decisions have not always made clear that we define make-whole relief to include direct or foreseeable pecuniary harms resulting from the respondent's unfair labor practices, we do so now.

*11 We have previously recognized that employees cannot be fully made whole without consideration for these types of losses, and the Board has at times awarded relief for pecuniary harms that were either a direct, or an indirect but foreseeable, consequence of a respondent's unfair labor practice. The philosophy of these cases underpins and informs our decision to clarify our remedies today. For example, only three years after the passage of the Act, the Board recognized that wrongfully-terminated employees may incur “expenses for transportation, room, and board, which they would not have incurred had they continued to work for the respondent,” and that these costs should reduce the amount of interim earnings that is subtracted from backpay awards. Crossett Lumber Co., 8 NLRB 440, 498 (1938); accord Deena Artware, Inc., 112 NLRB 371, 374 (1955), enfd. 228 F.2d 871 (6th Cir. 1955); see also Lou's Transport, Inc. v. NLRB, 945 F.3d 1012, 1024 (6th Cir. 2019) (“Interim employment expenses have been factored into back pay awards for more than 80 years.”).

Subsequently, in Baptist Memorial Hospital, the Board found that an employer unlawfully ejected a handbilling employee from its premises, causing him to be arrested and convicted of disorderly conduct. 229 NLRB 45, 45 (1977), enfd. 568 F.2d 1 (6th Cir. 1977). Noting that the “legal expenses and fees which have been or will be incurred by employee Wheeler in connection with this incident are directly the result of Respondent's unlawful policies and conduct,” the Board found that “[o]nly by requiring Respondent to reimburse Wheeler for these costs will we succeed in making Wheeler whole and in fulfilling our obligation to remove, insofar as is possible, the effects of Respondent's unfair labor practices.” Id. at 46.

In BRC Injected Rubber Products, an employee was discriminatorily assigned to a dirtier and more onerous work assignment in retaliation for her union activity, causing her clothes to be ruined. 311 NLRB 66, 66 fn. 3 (1993). Accordingly, the Board ordered “monetary reimbursement for the loss,” since the clothes were ruined as “the direct result of the Respondent's illegal conduct of assigning her to clean the pits.” Ibid.

*12 Similarly, in Nortech Waste, the employer reassigned a union activist to a job pulling nails, an “entirely unnecessary task” that would aggravate her carpal-tunnel syndrome and “cause her to break down.” 336 NLRB 554, 567 (2001). There, the Board ordered that the employee be made whole “for any medical expenses she incurred as a result of her unlawful reassignment.” Id. at 554 fn. 2. The Board found that these damages are “not speculative. Rather, they are specific and easily ascertained.” Ibid., citing Pilliod of Mississippi, 275 NLRB 799, 799 fn. 3 (1985).

In Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, the employer unlawfully retaliated against striking employees by removing their toolboxes from its facility and hauling them outside, where they were subsequently damaged by rain and needed to be removed with a tow truck. 367 NLRB No. 6 (2018), enfd. 976 F.3d 30 (D.C. Cir. 2020). Noting that “making the employees whole for those costs is necessary to fully remedy the Respondent's unfair labor practice and effectuate the policies of the Act,” the Board ordered the employer to make the employees “whole, with interest, for any expenses they incurred as a result of the Respondent unlawfully removing their toolboxes from its dealership” and “make whole all of the employees, with interest, for the towing expenses they incurred when they were unlawfully required to remove their toolboxes . . . .” Id., slip op. at 4. The Board found that these damages were “specific and easily ascertainable” and that “the determination of those costs does not require the special expertise of the courts.” Ibid.

In King Soopers, the Board recognized that “incurring search-for-work and interim employment expenses represent a different injury than losing wages. Thus, reimbursement of these expenses compensates discriminatees for a separate injury than lost pay.” 364 NLRB 1153, 1159 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017). The Board noted that “[w]here the Board has found that its remedial structure fails to fulfill its make-whole objective, “[it] has revised and updated its remedial policies . . . to ensure that victims of unlawful conduct are actually made whole.”' Id., at 1156 (quoting Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101, 102-103 (2014)). Accordingly, the Board modified the treatment of search-for-work and interim employment expenses to award these monetary damages separately from taxable net backpay. Id., slip op. at 8. In enforcing the Board's order, the D.C. Circuit stated, “[i]t is clear here that the Board's action in this case is well within its statutory authority.” King Soopers, Inc. v. NLRB, 859 F.3d 23, 36-39 (D.C. Cir. 2017).

*13 In Alameda Center for Rehabilitation and Healthcare, Inc., an employer unlawfully withheld employees' 401(k) contributions. 370 NLRB No. 25, slip op. at 1 (2020). There, the Board ordered the employer to not only reimburse the missing contributions, but to compensate employees for “the investment growth the amounts would have experienced during that period,” as this relief “restores employees to the status quo with respect to the matching contributions that they would have obtained but for the Respondent's unfair labor practice.” Ibid. Accord Lou's Transport, Inc., 366 NLRB No. 140 (2018), enfd. 945 F.3d 1012 (6th Cir. 2019).

Most recently, in Voorhees Care and Rehabilitation Center, the employer unlawfully discontinued employee healthcare coverage in violation of Section 8(a)(5). 371 NLRB No. 22 (2021). To “restore the status quo ante and fully remedy the Respondent's unlawful conduct,” the Board ordered the employer to “reimburse employees for the costs they incurred . . . including any increases in premiums, copays, coinsurance, deductibles, and other out-of-pocket expenses,” as well as to “pay any still-unpaid medical bills directly to the medical providers.” Id., slip op. at 3-4. See also Roman Iron Works, 292 NLRB 1292, 1294 (1989) (finding discriminatee entitled to reimbursement for medical expenses incurred during the backpay period, noting “[i]t is customary to include reimbursement of substitute health insurance premiums and out-of-pocket medical expenses in make-whole remedies for fringe benefits lost.”).

Despite the broad range of factual and legal circumstances encompassed by these cases, they share a common thread: the implicit recognition that making employees whole should include, at least, compensating them for direct or foreseeable pecuniary harms resulting from the respondent's unfair labor practice. Today, we make that explicit and expressly incorporate it into our standard make-whole order.

We recognize that our Notice and Invitation to File Briefs sought briefing on whether the Board should include, as part of its make-whole remedy, “relief for consequential damages,” Thryv, Inc., 371 NLRB No. 37, slip op. 1 (2021), and that courts have occasionally applied damages-like concepts like “actual losses” and “mitigation of damages” to the Board's remedial authority. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941). After further consideration, however, we recognize that “consequential damages” is a term of art used to refer to a specific type of legal damages awarded in other areas of the law and fails to accurately describe the make-whole remedial policy we espouse here. See Freeman Decorating Co., 288 NLRB 1235, 1235 fn. 2 (1988) (““[W]e observe that the Board does not award tort remedies, but rather remedies unlawful conduct. Any recompense awarded a discriminatee is not for physical injuries suffered, but rather is a necessary remedy to vindicate the purposes of the Act.”). Instead, the Board's remedial authority is rooted in its Section 10(c) mandate to “translat[e] into concreteness the purpose of safeguarding and encouraging the right of self-organization,” rather than “the correction of private injuries.” Phelps Dodge Corp., 313 U.S. at 192-193.¹¹

*14 Accordingly, we stress today that the Board is not instituting a policy or practice of awarding consequential damages, a legal term of art more suited for the common law of torts and contracts. Instead, we ground our decision in the make-whole principles of Section 10(c) of the Act,¹² the guidance of the examples in our precedent summarized above, and our affirmative duty to rectify the harms caused by a respondent's unfair labor practice by attempting to restore the employee to the situation they would have been in but for that unlawful conduct. These considerations persuade us that clarifying that our traditional make-whole remedy should also include compensation for direct or foreseeable pecuniary harms in all cases will better effectuate the purpose of the Act.

When exercising our remedial authority, we must “draw on enlightenment gained from experience.” NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 346 (1953); Carpenters Local 60 v. NLRB, 365 U.S. 651, 655 (1961) (“The Board has broad discretion to adapt its remedies to the needs of particular situations so that ‘the victims of discrimination’ may be treated fairly.”') (quoting Phelps Dodge Corp., 313 U.S. at 194). Therefore, the Board has periodically updated its make-whole relief to better effectuate the purposes of the Act. Compare Isis Plumbing & Heating Co., 138 NLRB 716, 717 (1962) (computing simple interest on backpay awards), enf. den. on other grounds, 322 F.2d 913 (9th Cir. 1963) with Kentucky River Medical Center, 356 NLRB 6, 8-9 (2010) (changing make-whole remedy from simple interest to daily compound interest to better effectuate policies of the Act); see generally Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101, 102 (2014) (“[T]he Board has revised and updated its remedial policies from time to time to ensure that victims of unlawful conduct are actually made whole.”).

“Make-whole relief” is more fully realized when it consistently compensates affected employees for all direct or foreseeable pecuniary harms that result from a respondent's unfair labor practice. See King Soopers, 364 NLRB 1153, 1156 (2016) (assessing “whether the current remedial framework properly awards make-whole relief, or fails to truly make whole the aggrieved victims of unlawful conduct.”). In The Voorhees Care & Rehabilitation Center, Chairman McFerran listed “a myriad of other possible examples” of unredressed pecuniary harms suffered by affected employees:

*15 Following an unlawful discharge, for example, an employee may be faced with interest and late fees on credit cards, or penalties if she must make early withdrawals from her retirement account in order to cover her living expenses. She might even lose her car or her home, if she is unable to make loan or mortgage payments. As a result of an unfair labor practice, discriminatees could also face increased transportation or childcare costs. 371 NLRB No. 22, slip op. at 4 fn. 14 (2021).

Where, as here, employees have been laid off in violation of the Act or been the targets of other unfair labor practices, they may be forced to incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet. We cannot fairly say that employees have been made whole until they are fully compensated for these kinds of pecuniary harms if the harms were direct or foreseeable consequences of the respondent's unfair labor practice. The Board has a “statutory obligation to provide meaningful, make-whole relief for losses incurred by discriminatees . . . .” King Soopers, 364 NLRB at 1153, 1155. To fulfill this statutory purpose, the Board must strive to ensure that employees are more fully restored to the situation they would have inhabited but for a respondent's unfair labor practice. See Town & Country Manufacturing Co., 136 NLRB 1022, 1029 (1962) (“It is axiomatic that remedial action, if it is to afford an effective redress for the commission of a statutory wrong, must be tailored to restore the wronged to the position he would have occupied but for the action of the wrongdoer . . . . Only when such action is taken can it truly be said that the wrong has been righted.”), enfd. 316 F.2d 846 (5th Cir. 1963).

Contrary to the arguments of the Respondent in its response to our Notice and Invitation to File Briefs, we find that our grant of such a remedy is firmly rooted within the Board's statutory authority. See International Brotherhood of Operative Potters v. NLRB, 320 F.2d 757, 761 (D.C. Cir. 1963) (“We cannot regard changes in remedial mechanisms as beyond the Board's powers so long as they reasonably effectuate the congressional policies underlying the statutory scheme.”). The broad remedial language of the Act, permitting the Board to “take such affirmative action including reinstatement with or without backpay,” imbues the Board with the power to issue remedies beyond the reinstatement and backpay expressly authorized. 29 U.S.C. § 160(c). To this effect, the operative word in this section is “including,” with “reinstatement with or without backpay” serving only as an example of one type of affirmative action permitted. See Phelps Dodge Corp., 313 U.S. at 188-89 (“To attribute such a function to the participial phrase introduced by ‘including’ is to shrivel a versatile principle to an illustrative application . . . . The word ‘including’ does not lend itself to such destructive significance.”); Virginia Electric & Power Co., 319 U.S. at 539 (“[T]he Board has wide discretion in ordering affirmative action; its power is not limited to the illustrative example of one type of permissible affirmative order, namely, reinstatement with or without back pay.”); Radio Officers' Union of Commercial Telegraphers Union, 347 U.S. at 54 (“[W]e interpreted the phrase giving the Board power to order ‘reinstatement of employees with or without back pay’ not to limit, but merely to illustrate the general grant of power to award affirmative relief.”).

*16 Because the plain language of the statute clearly allows for remedies beyond reinstatement and backpay, we need not look to legislative history in determining the parameters of Section 10(c). Nevertheless, we find nothing in the legislative history surrounding the passage of the Act that evidences any Congressional intent to limit the Board's authority to remedy employees' direct or foreseeable pecuniary harm. We are also unpersuaded by the argument of some amici that the failure of Congress to expressly authorize consequential damages in the 1947 Taft-Hartley amendments evidences an intent to deprive the Board of such authority. In these amendments, Congress modified the language of Section 10(c) to provide that “[n]o order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” Certain amici advance the argument that Congress acted intentionally when it failed to add these damages at the same time it otherwise modified the Board's remedial authority. Cf. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174 (2009) (“When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”).

As an initial matter, we note that what we clarify today regarding the application of our make-whole remedy is not ‘consequential damages' as that term is used in other areas of the law. Supreme Court authority makes clear, moreover, that these arguments are substantively without merit. In Fibreboard Paper Products Corp. v. NLRB, the Court held that “the legislative history of [Taft-Hartley] indicates that it was designed to preclude the Board from reinstating an individual who had been discharged because of misconduct. There is no indication, however, that it was designed to curtail the Board's power in fashioning remedies when the loss of employment stems directly from an unfair labor practice . . .” 379 U.S. 203, 217 (1964). Accordingly, the legislative history of the Act and its amendments does not serve to preclude us from issuing the make-whole relief discussed herein.

We are also unpersuaded by the assertion, advanced by our dissenting colleagues, that the remedies contemplated herein are akin to those awarded in tort proceedings, and thus implicate Seventh Amendment concerns. Such arguments were handily rejected in the early days of the National Labor Relations Act. In NLRB v. Jones & Laughlin Steel Corp., issued just two years after the Act's passage, the Supreme Court confirmed that the Seventh Amendment “has no application to cases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law. . . . It does not apply where the proceeding is not in the nature of a suit at common law.” 301 U.S. 1, 48 (1937) (internal citations omitted). Finding an NLRB statutory proceeding “is one unknown to the common law,” the Court determined that the remedies issued therein “are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit.” Id. at 48-49. In the same vein, while the Board's make-whole remedy may “somewhat resemble compensation for private injury” like that imposed in a tort proceeding, the relief we issue is nevertheless purely statutory in nature and specifically designed to effectuate the purposes of the Act. Virginia Electric & Power Co., 319 U.S. at 543. Accordingly, we find that our amended make-whole remedy is grounded squarely in our statutory authority, and does not implicate the Seventh Amendment.

1. Implementation of the Remedy

*17 We decline to treat today's remedy as “extraordinary relief,” to be issued only in the most egregious cases. As described above, our make-whole remedies do not punish bad actors, but rather implement the statutory principles of rectifying the harms actually incurred by the victims of unfair labor practices and restoring them to where they would have been but for the unlawful conduct. Affected employees bear the direct or foreseeable economic burdens of a respondent's unfair labor practice whether or not the Board labels the violation “egregious.”

Further, if we were to issue this make-whole relief only to address the most deplorable or flagrant violations of the Act, these remedies run the risk of becoming punitive rather than restorative. See Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-11 (1940) (“The Act does not prescribe penalties or fines in vindication of public rights or provide indemnity against community losses as distinguished from the protection and compensation of employees . . . We do not think that Congress intended to vest in the Board a virtually unlimited discretion to devise punitive measures.”); Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 235-236 (1938) (“[T]his authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.”). Even the Respondent recognizes that “by focusing on so-called egregious violations, the Board strays into this prohibited realm.”

By contrast, the remedy we clarify today will make affected employees whole for direct or foreseeable pecuniary harms that result from a respondent's unfair labor practice in every case in which our standard remedy would include make-whole relief, regardless of the egregiousness of the violation or the respondent's past conduct. Issuing a remedial order for such relief in all cases will permit the Board to satisfy its statutory duty to make employees whole, while ensuring that our make-whole remedy, applied equally to all respondents, is not unlawfully punitive. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293 (1960) (“[T]he public remedy is not thereby rendered punitive, where the measure of reimbursement is compensatory only.”)

Further, we decline the Respondent's suggestion that we avoid ordering such a remedy simply because it may be administratively complex. Our dissenting colleagues similarly allege that the standard we adopt today would unduly prolong compliance proceedings and may require the submission of evidence that would intrusively probe into employee's fiscal matters. As a threshold issue, we reject the suggestion that we should sacrifice the goals of the Act for the sake of administrative convenience. The possibility of increased complexity in compliance proceedings should not deter the Board from issuing remedies that best effectuate the policies of the Act. “A statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application.” Phelps Dodge Corp., 313 U.S. at 194. Simplicity of administration will not be given priority when balanced against our overarching duty to make employees whole for violations of the Act.

*18 Further, while we remain unconvinced that the concerns raised by our dissenting colleagues will manifest in practice, we note that much of the alleged delay or intrusiveness may be alleviated through simple measures in compliance proceedings. For example, nothing in today's decision should be read to prevent parties from stipulating to the immediate payment of certain monies in a compliance specification, like calculated backpay, while the respondent continues to challenge other elements of the specification, like the direct or foreseeable damages discussed herein. Similarly, while aggrieved employees will undoubtedly have to submit evidence to substantiate pecuniary harms for which they seek reimbursement, we believe that the compliance hearing can be conducted by Board administrative law judges and personnel in a dignified manner that protects employees from undue intrusion, much less embarrassment. We are confident that any speculative concerns advanced by our dissenting colleagues will be outweighed by the benefits that will accrue to affected employees through the fulfillment of our statutory directive: the issuance of true and complete make-whole relief to redress violations of the Act.

The concerns of our dissenting colleagues may be assuaged by an examination of the numerous cases cited elsewhere in this decision, which establish that in most instances, the Board's make-whole remedies are not significantly more administratively complex than traditional backpay calculations and can be readily handled in compliance proceedings. See, e.g., Nortech Waste, 336 NLRB 554, 554 fn. 2 (2001) (“leaving to the compliance stage . . . the question of whether the employees incurred medical expenses attributable to the respondents' unlawful conduct”); Pilliod of Mississippi, 275 NLRB 799, 801 fn. 3 (1985) (“leav[ing] to the compliance stage . . . whether Westmoreland incurred medical expenses attributable to the Respondent's conduct.”). The Board has also resolved potentially sensitive or “intrusive” issues of fact in compliance proceedings without issue. See Freeman Decorating Co., 288 NLRB 1235, 1235 fn. 2 (1988) (“[W]e leave to compliance determination of [injured employee's] disability, if any, and whether backpay and medical and rehabilitative costs are due . . .); The Voorhees Care and Rehabilitation Center, 371 NLRB No. 22, slip op. at 3-4 (2021) (contemplating the submission of, inter alia, out-of-pocket medical expenses and unpaid medical bills in compliance).

The Board may readily apply its existing evidentiary standards in compliance proceedings to the make-whole relief we are discussing today. For example, the finding of an unfair labor practice creates a rebuttable presumption that compensation is owed, traditionally in the form of backpay. See International Brotherhood of Teamsters Local 25, 366 NLRB No. 99 (2018), citing St. George Warehouse, 351 NLRB 961, 963 (2007); see also Cobb Mechanical Contractors, 333 NLRB 1168 (2001), enfd. in relevant part 295 F.3d 1370 (D.C. Cir. 2002); Arlington Hotel Co., 287 NLRB 851, 855 (1987), enfd. in relevant part 876 F.2d 678 (8th Cir. 1989).

*19 The procedures that parties now follow when litigating backpay are equally appliable to determining any direct or foreseeable pecuniary harm. If there is evidence that an employee incurred direct or foreseeable pecuniary harms as a result of the respondent's unfair labor practice, the General Counsel may present evidence of the nature and amount of the harm in compliance. We shall require that the General Counsel establish the amount of the pecuniary harm alleged, and that the pecuniary harm in question was either (a) directly caused by the unfair labor practice; or (b) was foreseeable at the time of the unfair labor practice and was incurred as a result of the unfair labor practice. In a matter analogous to the calculation of back pay, “[o]nce the General Counsel has established the gross amount . . . due the discriminatees in question, ‘the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability.”’ NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972) (quoting NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963)). Translating that process to the instant issue, the respondent will have the opportunity to challenge the alleged amount of compensation owed, present evidence demonstrating that the pecuniary harm would have occurred even absent the unfair labor practice, and/or establish that the harm was not foreseeable at the time the unfair labor practice occurred.

As in the past, we will not issue remedial orders for harms which are unquantifiable, speculative, or nonspecific. See Nortech Waste, 336 NLRB at 554 fn. 2. Any claimed damages must be supported by evidence; harm will not be presumed compensable, but we will include in our orders standard language requiring the respondent to compensate an employee for any covered harm that meets our standard of proof in compliance. Evidence of pecuniary harm may be established by, inter alia, available documentary evidence, including receipts, invoices, medical bills, and credit card and other financial statements. This evidence should establish specific, defined costs which would not have been incurred but for the respondent's unlawful conduct or were the foreseeable consequence of that conduct--and explain how those costs are due to the unfair labor practice. “Uncertainties or ambiguities in the evidence” may be “resolved against the respondent whose unlawful actions created the dispute.” NLRB Bench Book: An NLRB Trial Manual § 14-140, Burdens of Proof and Production, citing International Brotherhood of Teamsters Local 25, 366 NLRB No. 99, slip op. at 2 (“It is well established that where there are uncertainties or ambiguities, doubts should be resolved in favor of the wronged party rather than the wrongdoer.”); accord Lucky Cab Co., 366 NLRB No. 56, slip op. at 6 (2018), enfd. mem. 818 Fed.Appx. 638 (9th Cir. 2020); United Aircraft Corp., 204 NLRB 1068 (1973) (uncertainties should be resolved in favor of the “backpay claimant rather than the respondent wrongdoer”); see generally Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 564 (1931) (where plaintiff establishes damages were definitively attributable to the defendant's wrong, “the risk of the uncertainty [as to the amount of damages] should be thrown upon the wrongdoer instead of upon the injured party.”).

*20 We will not attempt today to enumerate all the pecuniary harms that may be considered direct or foreseeable in the myriad of unfair labor practice cases that come before us.¹³ “With one exception, not implicated today, the Board does not render advisory opinions.” 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 368 NLRB No. 60, slip op. at 3, 3 fn. 4 (2019) (quoting Snohomish County Headstart, 254 NLRB 1372, 1372 (1981) (internal quotations omitted)). We will be guided by our own caselaw in making those determinations in future cases.

Specifically, “direct harms” are those in which an employee's “loss was the direct result of the Respondent's illegal conduct.” BRC Injected Rubber Products, 311 NLRB 66, 66 fn. 3 (1993) (compensating employee for the cost of clothes that were ruined as a result of discriminatory work assignment). In contrast, “foreseeable harms” in our caselaw are those which the respondent knew or should have known would be likely to result from its violation of the Act, regardless of its intentions. For example, where a respondent terminated employees' health insurance without informing the union or its employees while continuing to deduct healthcare premiums, it was entirely foreseeable that the affected employees would incur out-of-pocket expenses in the interim; we accordingly ordered that the respondent “reimburse employees for the costs they incurred . . . including any increases in premiums, copays, coinsurance, deductibles, and other out-of-pocket expenses,” as well as to “pay any still-unpaid medical bills directly to the medical providers.” The Voorhees Care & Rehabilitation Center, 371 NLRB No. 22, slip op. at 3-4 (2021). Similarly, where an employer reassigned a union activist to a job pulling nails, an ““entirely unnecessary task” that would aggravate her carpal-tunnel syndrome and “cause her to break down,” the Board ordered that the employee be made whole “for any medical expenses she incurred as a result of her unlawful reassignment.” Nortech Waste, 336 NLRB 554, 554 fn. 2, 567 (2001); see also Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 4 (compensating employees not only for the costs of their damaged toolboxes directly damaged by the respondent but also “any expenses they incurred as a result of the Respondent unlawfully removing their toolboxes from its dealership”) (emphasis added), enfd. 976 F.3d 30 (D.C. Cir. 2020). Likewise, when a union engaged in a symbolic demonstration in violation of Section 8(b)(1)(A) by scattering bags of trash around a lobby, it was responsible for the effects of its action: “Whether they flung the sacks about purposely or inadvertently, Respondents cannot evade responsibility for the foreseeable consequences of their actions, including the harm done to a customer who was struck by a falling sack as she entered a salon on the lower level. Having acknowledged responsibility for the demonstration, the Respondents may not deny liability for its consequences . . . .” Service Employees Local 252 (General Maintenance Corp.), 329 NLRB 638, 685 (1999). Our caselaw thus provides us with sufficient guidance to issue remedies for direct or foreseeable pecuniary harms as they may arise.

*21 Accordingly, for the reasons set forth above, today we clarify that, in all cases in which our standard remedy would include an order for make-whole relief, we shall expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent's unfair labor practice.¹⁴ We will apply this policy retroactively in this case and in “all pending cases in whatever stage” given the absence of any “manifest injustice” in doing so. See SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006-1007 (1958)); Pressroom Cleaners, 361 NLRB 643, 648 (2014) (finding no manifest injustice in applying a remedial change retroactively). We find no manifest injustice here. This case involves a remedial issue, and thus, reliance on preexisting law is not an issue. King Soopers, Inc., 364 NLRB 1153, 1160 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017). Further, any reliance the Respondent placed on the Board's remedial authority is inapposite, as the aforecited cases clearly show that the Board has in the past awarded remedies justified on grounds similar to the ones contemplated herein. Today we clarify the scope of the Board's make-whole remedy by expressly including, in all cases in which our standard remedy would include make-whole relief, an order requiring that the respondent make affected employees whole for direct or foreseeable pecuniary harms that result from the respondent's unfair labor practice.

1. application of the remedy to the instant case

Here, the Charging Party advances three distinct types of pecuniary harms that were incurred by the New Business Advisors as a result of the Respondent's unlawful unilateral layoff. First, the Charging Party seeks a restoration of the book of business that had previously been afforded to each of the laid-off New Business Advisors. Next, the Charging Party seeks compensation for reimbursements the New Business Advisors had previously received for the fixed and variable costs of maintaining a passenger car for use on company business. Finally, the Charging Party seeks out-of-pocket medical expenses incurred by a New Business Advisor who was laid-off while on disability leave for a high-risk pregnancy. In reply, the Respondent argues that the six New Business Advisors would have eventually been laid off even if the parties had engaged in further collective bargaining. The Respondent also argues against the causation and foreseeability of each of the items requested by the Charging Party. Consistent with our past practice in calculating other forms of make-whole relief, we reserve these remedial issues for resolution in the compliance stage of the proceedings, when the General Counsel and the Respondent will each have the chance to present evidence supporting their respective positions.¹⁵

Amended Remedy

*22 Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we amend the judge's remedy in the following respects.

Having found that the Respondent unlawfully laid off six New Business Advisors, we shall order the Respondent to offer them reinstatement and make them whole for any loss of earnings and other benefits suffered as a result of the unilateral layoff. Backpay shall be computed in accordance with F.W Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with today's decision, the Respondent shall also compensate these employees for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful layoff, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.

In addition, we shall order the Respondent to compensate the affected employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). In accordance with our decision in Cascades Containerboard Packaging--Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), the Respondent shall also be required to file with the Regional Director for Region 20 a copy of each backpay recipient's corresponding W-2 form reflecting the backpay award. We shall also order the Respondent to remove from its files any reference to these employees' unlawful layoffs and to notify them in writing that this has been done and that the unlawful layoffs will not be used against them in any way.

ORDER

The National Labor Relations Board orders that the Respondent, Thryv, Inc., San Francisco, California

, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union's performance of its functions as the collective-bargaining representative of its employees in the following appropriate unit:

*23 All sales and clerical employees in the Northern California Region in the following classifications: Account Executive New Media (New Business Advisor-Premise); Advertising Sales Representative (Business Advisor-Premise); Key Account Executive (Sr. Business Advisor-Premise); Customer Associate; Representative Directory; Sales Representative, Field Sales Collector, Office Assistant, Supervisor's Assistant, Telephone Sales Representative, and Universal Support Associate, excluding all other employees and supervisors as defined in the Act.

(b) Unilaterally laying off unit employees without notifying and giving the Union an opportunity to bargain.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Furnish to the Union in a timely manner the information requested by the Union on April 12, September 11 and 16, and on October 3, 17, and 31, 2019.

(b) Before laying off bargaining-unit employees, or before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit described above.

(c) Rescind the layoffs of unit employees that were unilaterally implemented on September 20, 2019.

(d) Within 14 days from the date of this Order, offer the affected employees reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(e) Make the affected employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful layoff in the manner set forth in the remedy section of the judge's decision as amended in this decision.

(f) Compensate the affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee.

(g) File with the Regional Director for Region 20, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient's corresponding W-2 form reflecting the backpay award.

(h) Within 14 days from the date of this Order, from its files any reference to the unlawful layoffs, and within 3 days thereafter, notify the affected employees in writing that this has been done and that the layoffs will not be used against them in any way.

*24 (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(j) Within 14 days after service by the Region, post at its Northern California and Nevada facilities copies of the attached notice marked ““Appendix.”¹⁶ Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 12, 2019.

(k) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. December 13, 2022

Lauren McFerran

Chairman

Gwynne A. Wilcox

Member

David M. Prouty

Member

*25 MEMBERS KAPLAN AND RING, concurring in part and dissenting in part.

The national labor policy established by Congress is to safeguard commerce from disruption by “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”¹ To further that policy, Congress gave workers these rights in Section 7 of the National Labor Relations Act and prohibited employers and unions from engaging in the unfair labor practices specified in Section 8 of the Act. When the Board determines that a respondent has engaged in such an unfair labor practice, Congress has further provided that the Board “shall” order the respondent “to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.”² If an employee has suffered monetary losses as a result of an unfair labor practice, such as an unlawful discharge or reduction in pay or benefits, it is essential that they be made whole for those losses. Otherwise, employees will be deterred from exercising their Section 7 rights, and the Congressional policy will be undermined.

The Board's authority to award backpay to employees who have been suspended, laid off, or discharged in violation of the Act, or who suffer losses as a result of unlawful unilateral changes in their terms and conditions of employment, is expressly recognized in the Act and indisputable. The question presented in this case is the extent to which the Board may include compensation for other monetary losses in a make-whole remedy.

As the majority observes, the Board for many years has ordered that employees be made whole for a variety of monetary losses suffered as a result of an unfair labor practice. We agree with our colleagues that the Board should continue to order respondents to make employees whole for all losses suffered as a direct result of an unfair labor practice. In our view, employees should also be made whole for losses indirectly caused by an unfair labor practice where the causal link between the loss and the unfair labor practice is sufficiently clear. Because the determination of whether an unfair labor practice did indirectly cause an employee's alleged loss is highly fact-dependent and may raise difficult issues, we would resolve that issue on a case-by-case basis.

We therefore disagree with the majority that the Board should invariably “order respondents to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent's unfair labor practice” (emphasis added). On its face, this standard would permit recovery for any losses indirectly caused by an unfair labor practice, regardless of how long the chain of causation may stretch from unfair labor practice to loss, whenever the loss is found to be foreseeable. In our view, this standard opens the door to awards of speculative damages that go beyond the Board's remedial authority. We further observe that the Board faces potential Seventh Amendment issues if it strays into areas more akin to tort remedies. Those concerns also militate against the majority's “direct or foreseeable” standard. Moreover, even if the Board does have the authority to award such remedies, doing so would invite protracted litigation over causation at compliance, including intrusive and potentially humiliating inquiries into employees' personal financial circumstances for the purpose of determining whether and to what extent the employee's own financial decisions contributed to the losses. Compliance with make-whole orders awarding monies to which employees are indisputably entitled will be delayed by such litigation. Accordingly, from the majority's decision to adopt a “direct or foreseeable pecuniary harms” standard, we dissent.

With respect to this case, the majority identifies three losses incurred by employees when the Respondent unlawfully laid them off: loss of the “book of business” that had previously been afforded to each employee, loss of reimbursements the employees had previously received for the fixed and variable costs of maintaining a passenger vehicle for use on company business, and out-of-pocket medical expenses incurred by one employee who was laid off while on disability leave for a high-risk pregnancy. As discussed below, the restoration of an employee's pre-layoff book of business is properly considered an element of reinstatement rather than a make-whole remedy. With respect to the other two types of monetary loss, we believe that employees should be made whole for those losses if they were caused by the Respondent's unfair labor practices under the standard discussed below and that the question of whether they were so caused should be resolved at the compliance stage of this proceeding. Accordingly, in these respects, we concur in the majority's order.

*26 A. The Respondent Violated the Act by Laying Off Employees

The Respondent laid off six New Business Advisors in 2019. We agree with our colleagues that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to respond to numerous information requests submitted by the Union in relation to the layoffs. Contrary to the judge, we also agree with our colleagues that the Respondent violated the Act by unilaterally laying off the New Business Advisors. In so finding, we do not rely on the Respondent's failure to respond to the Union's information requests or its failure to refrain from making unilateral changes during bargaining for a successor contract. Instead, we simply agree that the Respondent's decision to lay off the six New Business Advisors was presented as a fait accompli, as evidenced by the Respondent's September 5, 2019 letter notifying the Union that the Respondent would inform the employees of the layoff the following day and its announcement the next day that it was “eliminating our Northern California DSE [New Business Advisor] Channel,” that these “positions will be eliminated effective September 20, 2019,” and that the Respondent had already sent severance packages to all six affected employees via overnight mail. We also agree that the Respondent did not “cure” its unlawful conduct in subsequent bargaining.

1. The Respondent Is Required to Make Affected Employees Whole
2. The Board's authority to make employees whole is not limited to backpay

The Board “acts in a public capacity to give effect to the declared public policy of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.” National Licorice Co. v. NLRB, 309 U.S. 350, 362 (1940) (internal quotation marks omitted). In considering the scope of its authority to give effect to this public policy through the exercise of its remedial powers, the Board must remain mindful of the limits of its authority in this regard. As the Supreme Court made clear shortly after the NLRA was enacted and upheld, the Board's “power to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 236 (1938). Thus, the Board may not inflict upon a respondent “any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.” Id. at 235-236. In addition, the Seventh Amendment precludes the Board from adjudicating claims that must instead be decided by a court because the parties have a right to have those claims decided by a jury. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-49 (1937) (recognizing constitutional limitation). Consistent with this principle, the Board has recognized the impropriety of ordering reimbursement for losses that constitute tort damages. Nortech Waste, 336 NLRB 554, 554 fn. 2 (2001).

Within these limits, however, the Board possesses broad discretion in exercising its remedial powers, subject to limited judicial review. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216 (1964). Section 10(c) states that the Board's remedial authority “includ[es]” reinstatement with or without backpay; it does not say that its authority is limited to those remedies. As the Supreme Court observed in Phelps Dodge Corp. v. NLRB, “[t]o attribute such a [limiting] function to the participial phrase introduced by “including' is to shrivel a versatile principle to an illustrative application. We find no justification whatever for attributing to Congress such a casuistic withdrawal of the authority which, but for the illustration, it clearly has given the Board.” 313 U.S. 177, 189 (1941).³ To the contrary, “[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.” Id. at 197. Accordingly, we agree with our colleagues that the Board has the authority to order respondents to make employees whole for monetary losses other than backpay. As detailed in the majority opinion, the Board has done so for many years.

*27 2. The majority's inclusion of “foreseeable harms” as part of the standard make-whole remedy is overbroad

The Notice and Invitation to File Briefs sought public comment on whether the Board should award consequential damages. We agree with the majority that it should not. As the majority correctly observes, the term consequential damages is “a legal term of art more suited for the common law of torts and contracts.” Instead, in all cases in which the remedy includes make-whole relief, our colleagues modify the Board's standard make-whole remedy to include a provision “requiring that the respondent make affected employees whole for direct or foreseeable pecuniary harms that result from the respondent's unfair labor practice.” As defined by the majority, direct harms are monetary losses that result directly from an unfair labor practice. “Foreseeable harms,” in contrast, “are those which the respondent knew or should have known would be likely to result from its violation of the Act, regardless of its intentions.” The majority appears to view its “direct or foreseeable” standard as, at least in part, a synthesis of prior Board decisions awarding make-whole relief other than backpay in a variety of circumstances. However, our colleagues make clear that their standard also could encompass non-backpay make-whole awards for other kinds of monetary losses--for example, credit-card debt, interest and late fees on credit-card debt, penalties incurred from making an early withdrawal from a retirement account to defray living expenses, and loss of a car or home if the employee is unable to make loan, rent, or mortgage payments. The Board has not previously included compensation for such losses in its make-whole remedy.

We agree with the majority that employees should be made whole for monetary losses that are a “direct” result of an unfair labor practice. For purposes of this opinion, we define direct losses as those that are the first link in a chain of events beginning with the unfair labor practice.⁴ See, e.g., Nortech Waste, 336 NLRB at 554 fn. 2 (awarding medical expenses where the employer's unlawful reassignment of an employee to a repetitive-motion job aggravated her carpal-tunnel syndrome); BRC Injected Rubber Products, 311 NLRB 66, 66 fn. 3 (1993) (awarding reimbursement for clothing ruined as a result of the employer's unlawful assignment of an employee to a “dirty and messy job”); Baptist Memorial Hospital, 229 NLRB 45, 46 (1977) (awarding legal expenses incurred by employee after employer unlawfully ejected him from the premises, causing him to be arrested and charged with disorderly conduct), enfd. 568 F.2d 1 (6th Cir. 1977). To the extent the majority adopts a definition of “direct pecuniary harms” that is consistent with this precedent, we agree with them that the Board should make employees whole for monetary losses directly caused by unfair labor practices.

We recognize that some losses that are indirectly caused by an unfair labor practice also may be compensable. For example, in Voorhees Care & Rehabilitation Center, 371 NLRB No. 22, slip op. at 3-4 (2021), the Board ordered the employer to make employees whole by reimbursing and/or paying for outstanding medical expenses incurred by the employees as a result of its unlawful unilateral failure to pay medical insurance premiums and subsequent implementation of an inferior health insurance plan. Although the employees incurred the medical expenses as a direct result of receiving needed medical care--and unlike in Nortech Waste, the need for that care was not caused by the employer's unfair labor practice--these expenses would have been reimbursed by employer-provided health insurance absent the employer's unlawful unilateral changes to the employees' insurance. As such, the causal link between the unfair labor practices and the losses was clear. Similarly, in Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 4 (2018), enfd. in relevant part 976 F.3d 30 (D.C. Cir. 2020), the employer unlawfully moved large and expensive employee-owned toolboxes from an indoor work area to an outdoor location on its premises where they were subsequently damaged by heavy rainfall. While the damage was directly caused by the rain, the toolboxes were damaged by the rain only because the employer unlawfully moved them outside. In both cases, the losses were not only clearly foreseeable but there was a clear causal link between the unfair labor practice and the loss. In our view, employees should be compensated for foreseeable losses in other cases where the chain of causation is similarly clear.⁵

We do not, however, agree with our colleagues that all losses indirectly caused by an unfair labor practice are compensable in a Board proceeding, regardless of how many steps removed the losses are from the unfair labor practice in the chain of causation, so long as the losses are deemed ““foreseeable.” Of course, “foreseeability” is a central element of tort law.⁶ Any attempt to address tort claims in a Board proceeding obviously runs headlong into the Seventh Amendment's guarantee of the right to have such claims tried before a jury.⁷ Moreover, insofar as the majority contemplates compensation for monetary harms indirectly caused by an unfair labor practice regardless of how remote the harms may be from the unfair labor practice in the chain of causation, they go well beyond tort law, which requires proof that the wrongful act was the “proximate cause” of the injury.⁸

The majority also goes well beyond the remedies available under Title VII as amended in 1991, where Congress specifically provided for compensatory damages triable before a jury precisely because the Seventh Amendment requires it.⁹ The Equal Employment Opportunity Commission (EEOC) has interpreted this provision to limit compensatory damages to “proximate consequences which can be established with requisite certainty.”¹⁰ Consistent with this interpretation, the EEOC excludes from compensatory awards day-to-day living expenses that would have been incurred even absent the discrimination.¹¹ The majority, in contrast, appears to envision awarding compensation for similar expenses under the standard they announce today. Our colleagues fail to offer a valid justification for interpreting the Act to permit the Board to provide, with no right to a trial by jury, for broader make-whole awards than are available as compensatory damages, with a right to a jury trial, in Title VII cases.

Even assuming that the Board did have the authority to compensate employees for all foreseeable losses indirectly caused by an unfair labor practice, we do not believe that it would be prudent to attempt to do so. Any such effort will inevitably spark a wide-ranging compliance inquiry into a discriminatee's financial circumstances and past financial decisions, made necessary in order to determine the extent to which those circumstances and decisions played a part in the losses suffered. Such proceedings would be intrusive and potentially deeply embarrassing for discriminatees.¹² They would also be time-consuming and would unduly prolong compliance proceedings and thereby delay the day when the backpay claimants would receive any relief.¹³ In our view, the possible benefits of this course of action are too remote and the costs too high to make it worth pursuing, even if it were permissible to do so.

The difficulties inherent in expanding Board remedies in this way were recently demonstrated in United Mineworkers of America (Warrior Met Coal Mining, Inc.), Case 10-CB-275094 (June 16, 2022), enfd. No. 22-12227-A (11th Cir. 2022). There, the Board approved a formal settlement stipulation, agreed to by all parties, resolving allegations that the respondent union engaged in unlawful actions in connection with a strike. As relevant here, the settlement provided for the respondent union to pay “make-whole and consequential damages” to the employer and certain named employees.¹⁴ Pursuant to the settlement, regional personnel assessed those damages at $13.3 million.¹⁵ After the respondent vehemently complained, the region reduced its damage assessment to $435,000.¹⁶ We express no view regarding the merits of these changing assessments, which are not before us here. But the wide difference between the initial and final amounts assessed strongly suggest that the majority's foreseeable-loss standard will be difficult to apply and result in bitterly disputed awards.

Finally, the majority places the burden on the General Counsel to show that the employee incurred compensable losses as a result of an unfair labor practice, and on the employer to show that the losses would have occurred even absent the unfair labor practice. To the extent that the majority is simply recognizing a respondent's right to rebut the General Counsel's evidence, we agree with that truism. Insofar as the majority contemplates something else, however, we disagree. When applied, the majority's articulation of the parties' respective burdens of proof could result in an improper shifting of the General Counsel's burden to prove causation to the employer to prove absence of causation. In our view, the Board lacks the authority to require compensation for expenses that would have been incurred even absent the unfair labor practice or to relieve the General Counsel of the burden of proving that an asserted loss was in fact caused by the unfair labor practice. Placing the burden of proof on the employer would be especially unjustified since the evidence relevant to the issue is more likely to be available to the General Counsel than to the employer. We disagree with the majority's standard to the extent that it departs from these principles.

*28 2. In the instant dispute, restoration of the employees' “book of business” is a reinstatement remedy, not a make-whole remedy

As noted above, the Charging Party identifies three losses incurred by the New Business Advisors as a result of being unlawfully laid off, compensation for which should be included in the make-whole remedy: loss of each laid-off employee's “book of business,” loss of reimbursement for the fixed and variable costs of maintaining a passenger vehicle for use on company business,¹⁷ and out-of-pocket medical expenses incurred by a pregnant New Business Advisor that allegedly would have been covered by her employer-provided health insurance had she not been laid off.¹⁸

We agree that the automobile business maintenance costs and medical expenses are compensable as part of a make-whole remedy, provided that the General Counsel establishes that they were either directly caused by the Respondent's unfair labor practices or foreseeably resulted from them and that there was a sufficiently clear causal link between the unfair labor practices and the losses. Indeed, the Board has previously held that medical expenses are compensable under the circumstances alleged to be present here.¹⁹ We would leave to compliance the question of whether such losses were caused by the unfair labor practices in the manner we have described, as well as all other compliance issues.

We do not, however, agree with the Charging Party's argument that the restoration of each employee's book of business is properly categorized as a make-whole remedy. According to the Charging Party, the laid-off employees sold digital advertising, received commissions on their sales, and retained their existing customers from year to year. The Charging Party asserts that “a sales representative reinstated without her book of business has not been made whole because, upon reinstatement, she will not be able to earn a quantity of commissions similar to what she earned before the discharge.” We disagree, however, that this is properly considered a make-whole matter.

Restoration of the book of business goes to the conditions under which the employees are to be reinstated, not to the amount of compensation due them for losses suffered prior to their reinstatement during the backpay period. As such, it is outside the scope of the Notice and Invitation to File Briefs, which by its terms solely addresses the scope of the Board's make-whole remedy. Accordingly, this issue is not before the Board today, and we therefore express no view on whether a valid offer of reinstatement must include restoration of each laid-off employee's book of business. Rather, we leave that issue to be resolved at compliance under existing precedent. See D.L. Baker, Inc., 351 NLRB 515, 531-532 (2007) (finding reinstatement offer invalid because it was for nonequivalent employment); NLRB Casehandling Manual Part 3 (Compliance) § 10530.1 (A reinstatement order is meant to restore the employee “to circumstances that existed prior to the respondent's unlawful action or that would be in effect had there been no unlawful action.”). In this regard, we note that the backpay period does not end until a valid offer of reinstatement is made or the backpay period has been tolled for other valid reasons. NLRB Casehandling Manual Part 3 (Compliance) §10536.2. To the extent that the Charging Party contends that the unlawfully laid-off employees are entitled to financial compensation if their book of business is not restored upon their reinstatement, even if a valid offer of reinstatement does not require the Respondent to do so, we disagree. Such an award would be inconsistent with the basic principles on which reinstatement and backpay are based, as discussed above.

*29 Conclusion

Individuals who lose their employment due to an unfair labor practice may well suffer economic losses beyond lost pay. For some employees, these losses may be devastating. It is indefensible that employees should pay such a price for exercising rights that have been guaranteed to American workers since 1935-- rights the protection of which Congress has declared essential to the proper functioning of our national economy. We agree wholeheartedly with our colleagues that the Board is duty-bound to remedy those losses to the fullest extent permitted by law. The Constitution, the Act, and Supreme Court precedent place limits on the Board's remedial authority, however, and the Board is duty-bound to respect those limits as well. We agree with our colleagues that some clarification of the Board's make-whole remedy is within our authority. In our view, however, the majority's decision to include compensation for all losses foreseeably resulting from an unfair labor practice is unwise and likely beyond the Board's statutory authority for the reasons we have set forth. Accordingly, while we concur in part with respect to the specific remedial issues this case presents, we cannot join our colleagues in adopting a “direct or foreseeable” standard. To that extent, we respectfully dissent.

Dated, Washington, D.C. December 13, 2022

Marvin E. Kaplan

Member

John F. Ring

Member